On September 27, 2013, the Federal Communication Commission (FCC) released a Notice of Proposed Rulemaking (NPRM), related to how wireless tower siting applications (e.g., for cell phone and similar communications systems) are processed by cities.

The 86-page NPRM covers four different issues and seeks comments on all of them. The first two issues relate to whether the federal National Environmental Protection Act and National Historic Preservation Act review processes should apply to distributed antenna systems (DAS). DAS is a relatively new technology that provides wireless communication coverage using several small, low-mounted antennas rather than traditional large towers.

The second addresses the issue of whether temporary wireless communications towers should be exempt from environmental review. The NPRM defines the towers that would be exempt as those less than 200 feet tall that will be erected for 60 days or less.

The third and fourth issues are of most concern to cities. The third issue relates to the FCC proposing rules to implement legislation (Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012) passed by Congress last year. Section 6409 provides that:

Notwithstanding . . . any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

The FCC is asking for comments to clarify the provision above. While the language seems clear, some industry groups have contended – among many other things – that it mandates cities to allow access to city facilities for wireless facility placement.

On the fourth issue, the FCC is seeking comments on a previous order known as the “shot clock”rule (See previous Legislative Update articles on the order and a failed legal challenge). The “shot clock” rule mandates that cities approve an application for a new wireless communication tower within 150 days and a colocation request within 90 days. Specifically, the FCC is seeking comments on:

whether the FCC should update its definition of collocation to match the standard it develops in the regulation to implement Section 6409;

prohibiting local governments from using a moratorium on new construction to bypass the shot clock rule;

applying the shot clock rule to DAS facilities; and

whether preferences for placing wireless facilities on municipal property are unreasonably discriminatory because they limit the siting flexibility of subsequent wireless entrants.

This NPRM doesn’t appear to be as onerous as past FCC attempts to preempt cities in areas such as right-of-way authority. But it does bear out a continuing trend of incremental preemption of local authority.

Comments will be due 60 days after the NPRM is posted in the Federal Register, with reply comments due 90 days after posting. (The NPRM has yet to be posted because of the federal government shutdown.) The League, in conjunction with the Texas Coalition of Cities for Utilities Issues, the National League of Cities, and others, will monitor the process and file reply comments on the proposal if necessary.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.